The High Court of Kenya on Friday, December 6, delivered a ruling that guarantees Muslim students at Visa Oshwal Academy primary in Parklands, Nairobi their freedom of worship.
High Court Judge Justice James Wakiaga ruled that an earlier decision by the school to inhibit and/or refuse Muslim pupils or students to pray their five obligatory prayers at ordained times is discriminatory, unlawful and unconstitutional.
“A declaration is hereby issued that the decision of the 1st respondent to inhibit and/or disallow performance of (dhuhr) afternoon prayers by Muslim learners in the school indirectly discriminated against them on the basis of their religion,” Justice Wakiaga ruled.
“A declaration is hereby issued that the policies issued by the 1st respondent known as Guidelines and Regulations for Cooperative Engagement between the school and parents and the Terms for Continuity of Students, to the extent that they violate the rights and freedoms of the Muslim students in the 1st Respondent, are null and void.”
Court Ruling on Muslim Students Rights to Worship
The court referred to a circular from the Ministry of Education (MoE), which noted that some schools were violating the religious rights of students by using religion as a reason to deny admission or expel learners.
According to MoE, these violations often take the form of prohibiting students from wearing religious attire like hijabs and turbans, forcing them to take religious education subjects such as Islamic Religious Education (IRE), Christian Religious Education (CRE), or Hindu Religious Education (HRE), regardless of their faith.
Additionally, the circular stated that some schools deny students the opportunity to observe their religious prayers, fail to provide designated worship spaces, or compel students to participate in religious rites and activities that go against their beliefs.
“In particular, the Constitution of Kenya 2010, acknowledges that Kenyans belong to diverse ethnic, cultural and religious backgrounds and the Constitution elaborately expounds on the need to respect these diversities,” read court documents in part.
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Allegations Against Visa Oshwal School
The ruling follows a petition filed by Supreme Council of Kenya Muslims (SUPKEM) and a parent, protesting against new policies that restrict children from conducting Islamic prayers within Visa Oshwal Academy in Parklands, Nairobi compound.
In an application, the parents of the students claimed that sometimes in May 2018, the school stopped the Muslims pupils from pray within the school compound and even stationed some teachers in classrooms to ensure compliance with the directive.
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Additionally, the parents claimed that the school principal stationed teachers in classrooms over the lunch hour to ensure observance of the directive.
Parents of affected students said that they tried to reach and engage the school on the matter, but no agreement was reached.
“The issue was raised at a parents’ forum in May 2018, but the school declined to allow the request by Muslim parents and further rejected a request for Muslim learners to pray anywhere within the school compound,” read the petition.
“Subsequent correspondence between the school and the advocates of parents of Muslim children bore no fruit.”
The school’s stand was that it does not accord special treatment to any faith and that no special treatment can be accorded to Muslim students.
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School Practices Jain Prayers
The petitioners asserted that it is on record that as part of the school routine in the assemblies and orientation, Jain prayers are performed, a classic example of double standards.
Additionally, the petitioners stated that in a circular dated 12.1.19, the school unilaterally and without consultation with the parents, introduced new guidelines known as Guidelines and Regulations for Cooperative Engagement Between the School and the Parents.
Clause 3 of the guidelines provided that the school is based on Jainism and the values thereof, that the school does not provide for the practice or engagement of any religious rites, rituals or expression.
It opined that it provides an environment where all regardless of their faith can equally participate and engage in school community.
Furthermore, the guidelines read that the school will not provide spaces, teaching clubs or school resources to religious practice which led the petitioner and other Muslim parents to instruct their advocates on record to seek the intervention.
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